BLOGSupreme Court’s Fetal Burial Decision Prompts Deeper Questions on Humanity of Unborn

By Denise Burke Posted on: | June 13, 2019

Like nothing else in life, a burial forces bereaved friends and family members to wrestle with the most important questions in life. All the more when the deceased is a child, cut off from life without ever having the chance to realize his or her full potential.

Who would she have been? What would he have been like as a father? What might she have accomplished? Whom would he have loved?

Every one of these drive us back to the essential questions embedded in humanity itself. We instinctively know we were made for something, carrying with us an onboard purpose no one else can accomplish quite like us. And we know that because of who we are as human beings. Events like burials leave us no choice but to grapple with those questions at the heart of the human experience.

That’s what makes the U.S. Supreme Court’s decision in Box v. Planned Parenthood of Indiana and Kentucky so important. The Indiana law in question requires the proper burial or cremation of unborn children lost to miscarriage and abortion—the latter of which prompted the legislation in the wake of undercover videos capturing Planned Parenthood employees haggling over the body parts of aborted babies that first dropped in the summer of 2015.

In Box, the Supreme Court was asked to weigh in on two questions: Whether a state has the right to protect unborn children against lethal discrimination via abortion on the basis of immutable characteristics like race, sex, and Down syndrome; and whether states have the right to require a proper burial or cremation for unborn children lost to miscarriage or abortion.

While the court declined, for now, a chance to address states’ rights to regulate discriminatory abortions, it also upheld Indiana’s law bestowing the slightest modicum of dignity to abortion victims through burial.

The court’s decision to keep Indiana’s burial requirement on the books is no small matter. It’s a reminder that, at a basic level, aborted children are just that—children.

That such a law was necessary is as undeniable as it is heartbreaking. Prior to the first release of videos from the Center for Medical Progress, taxpayer-subsidized Planned Parenthood could hide the grisly aim of its work behind mottos like “reproductive healthcare” or its trademarked “Care. No matter what.”

But the nation’s largest abortion corporation has had very little to hide behind over the past four years. The horrific truth is, in Planned Parenthood’s ideal world, not only would it continue to abort over 330,000 American babies each year, but it could keep up its side hustle of selling limbs, lungs, brains, livers, hearts, and muscle tissue harvested from aborted babies.

Indeed, even as Planned Parenthood has done its level best to make the story go away—both by trying to discredit the investigation and prosecuting the investigator—the inhumane treatment of unborn children has only become more pronounced.

Four years ago, it would have been hard to envision any lawmaker openly shill for late-term abortions and even infanticide, let alone pass laws exposing more babies to abortion, but that’s exactly what we’ve seen in states like New York, Virginia, Vermont, and Illinois.

As Justice Clarence Thomas noted in his scathing Box concurrence, it was only after the Nazi party began carrying out the implications of eugenics and “social hygiene” in the 1940s that eugenicists shifted rhetorically to obscure the eerie similarities between their worldview and the horrors played out in Germany.

Like any other man-made atrocity, abortion relies on dehumanization. If you can get around the humanity of an unborn person, treating her body as “medical waste,” you can justify taking her life for any reason or no reason at all.

That’s what makes the Supreme Court’s decision to allow Indiana’s fetal burial law so crucial to the conversation. It brings every one of us face-to-face with the undeniable reality that the baby in the womb is inescapably human, and if human, fully deserving of a proper burial.

And that brings us one step closer to the ultimate question we need to answer: If a child’s humanity compels us to bury her properly, what gave us the right to take her life in the first place?


Alliance Defending Freedom filed a friend-of-the-court brief with the U.S. Supreme Court on behalf of the Radiance Foundation in Box v. Planned Parenthood of Indiana and Kentucky.

Denise Burke

Senior Counsel

Denise Burke serves as senior counsel with Alliance Defending Freedom, where she is a member of the Center for Legislative Advocacy.

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